HARBIN ELECTRIC, INC. A US Public Company. Stock Symbol: HRBN
Exhibit
10.1
 |
A
US Public Company. Stock Symbol:
HRBN
|
July
14, 2009
Gentlemen:
Reference is hereby made to (i) the
Purchase Agreement dated August 29, 2006 (the “Purchase Agreement”)
by and among Citadel Equity Fund Ltd., Xxxxxxx Xxxxx International and Harbin
Electric, Inc., a Nevada corporation (the “Company”) and
(ii) the Indenture dated as of August 30, 2006, as supplemented (the “Indenture”) by and
among the Company, the Subsidiary Guarantors named therein and The Bank of New
York Mellon, as trustee (the “Trustee”) with
respect to the Company’s Guaranteed Senior Secured Floating Rate Notes due 2012
and the Company’s Guaranteed Senior Secured Floating Rate Notes due 2010 (the
“2010
Notes”). Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Purchase Agreement or the
Indenture, as the case may be.
Section 8.02 of the Indenture provides,
among other things, that without the consent of each Holder, an amendment or
waiver may not (with respect to any Notes held by a non-consenting Holder)
reduce the interest or principal of any Note or impair the right of any Holder
to receive payment of principal of, premium, if any, and interest, if any, on
such Holder’s Notes.
Each of the undersigned Holders owns
the aggregate principal amount of the 2010 Notes set forth next to such Holder’s
name on the signature page hereto.
Each of the undersigned Holders hereby
(i) waives each and every applicable provision of the Indenture (including
without limitation Article 3 and Sections 4.09 and 4.10 thereof) but only to the
fullest extent necessary to permit the Company to repurchase, at its option, all
(but not part) of the 2010 Notes held by the Holders at any time on or prior to
July 31, 2009 at the Repurchase Price (defined below), (the “Proposed 2010 Note
Repurchase”), (ii) consents to the Proposed 2010 Note Repurchase,
(iii) waives each and every provision of the Indenture (including without
limitation Article 3 and Sections 4.09 and 4.10 thereof) but only to the fullest
extent necessary to permit the Company to Incur up to $32 million in Debt (the
“New Debt”) on
or prior to July 30, 2009; provided that the Company shall apply not less than
$6 million of the proceeds of the New Debt for the Proposed 2010 Note Repurchase
(the “Proposed Debt
Incurrence”).
The
“Repurchase
Price” shall be cash equal to 97% of the aggregate principal amount of
the 2010 Notes held by such Holder plus accrued and unpaid interest thereon to
but excluding the Repurchase Date (defined below).
The “Repurchase Date”
shall mean a business day no later than July 31, 2009, on which the Proposed
2010 Note Repurchase is consummated; provided that, if the Proposed Debt
Incurrence is consummated, the Repurchase Date shall be no later than one
business day following the date on which the Proposed Debt Incurrence is
consummated.
Main
Office
No. 9 Ha
Ping Xi Lu, Ha Ping Lu Xx Xxxxx Qu, Xxxxxx Xxx Xx Xx, Xxxxxx, Xxxxx
000000
Tel:
00-000-0000-0000 Fax:
00-000-0000-0000
XX
Xxxxxx
00
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Tel:
000-000-0000
xxx.xxxxxxxxxxxxxx.xxx
2
Except as noted in the preceding
paragraph, the undersigned Holder hereby waives and agrees not to exercise, on
behalf of itself, until August 1, 2009, any and all rights that it may otherwise
have under Section 5A (Right to Future Stock Issuance) of the Purchase
Agreement.
The Company hereby agrees to use its
best efforts to consummate the Proposed 2010 Note Repurchase on or prior to July
31, 2009.
In case
the Proposed 2010 Note Repurchase is not consummated on or prior to July 31,
2009, then the Company will pay, on or before August 2, 2009, each of the
undersigned Holder an amount equal to 2% of the aggregate principal amount of
the 2010 Notes listed next to such name below,
which amount shall be in addition to any and all amounts due under the Indenture
or the 2010 Notes.
Any and
all consents and waivers granted by the undersigned Holder set forth above shall
expire at 5 p.m. New York time on July 31, 2009, and to the extent the Company
is in breach of any provision of the Indenture or the Notes, the undersigned
Holder reserves its rights to take any and all actions permitted under the
Indenture, the 2010 Notes or applicable law. Any and all consents and waivers
granted by such Holder set forth above and to the extent not expired as
specified herein shall be binding on the party hereto and its respective
successors, assigns and transferees.
Except as expressly waived or otherwise
specifically provided herein, all of the terms of each of the 2010 Notes, the
Indenture and the Purchase Agreement shall remain unamended and unwaived and
shall continue to be and shall remain in full force and effect in accordance
with their respective terms.
This letter is governed by the laws of
the State of New York without giving effect to the conflict of laws rules of any
jurisdiction. This letter may be signed in one or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same agreement. Any signature delivered by a
party via telecopier shall be deemed to be an original signature
hereto.
Kindly acknowledge receipt of this
letter and agreement to the foregoing by executing the enclosed copy of this
letter where indicated and returning it to the Company, whereupon it shall
become a binding agreement among us as of the date hereof.
|
|
Very
truly yours,
By:_______________________________
Name: Xxxxxx
Xxxx
Title: Chairman
& CEO
|
Main Office
No. 9 Ha
Ping Xi Lu, Ha Ping Lu Xx Xxxxx Qu, Xxxxxx Xxx Xx Xx, Xxxxxx, Xxxxx
000000
Tel:
00-000-0000-0000 Fax:
00-000-0000-0000
XX Xxxxxx
00
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Tel:
000-000-0000
xxx.xxxxxxxxxxxxxx.xxx
3
AGREED
AND ACKNOWLEDGED:
Xxxxxxx
Xxxxx International
By:________________________________
Name:
Title:
Aggregate
Principal Amount of 2010 Notes Owned and For Which Waiver and Consent are
Given:$ 3 million
ABN AMRO
Bank N.V., London Branch
By:________________________________
Name:
Title:
Aggregate
Principal Amount of 2010 Notes Owned and For Which Waiver and Consent are
Given:$ 3 million
Main Office
No. 9 Ha
Ping Xi Lu, Ha Ping Lu Xx Xxxxx Qu, Xxxxxx Xxx Xx Xx, Xxxxxx, Xxxxx
000000
Tel:
00-000-0000-0000 Fax:
00-000-0000-0000
XX Xxxxxx
00
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Tel:
000-000-0000
xxx.xxxxxxxxxxxxxx.xxx
